42 PROCTOR | August 2017
witness gave in evidence in chief on the same
topic – where it is therefore important to
distinguish between a case where a witness, in
cross-examination, does no more than admit that
he or she has made a prior inconsistent statement
and a case where the witness goes further to
swear that the relevant facts in the prior
inconsistent statement are true or, expressed
another way, that they are accurate – where thus,
if the maker of a prior inconsistent statement
adopts as true (or accurate) the facts stated in it,
the “witness, by doing so, will be giving evidence
of those facts, which evidence can be relied on
independently of the statement” – where it will be
for the jury to make their own assessment of the
testimony in order to decide whether the version
first advanced in evidence in chief or the version
from the prior inconsistent statement which the
witness adopted during cross-examination ought
to be accepted – where as to this, the jury’s task is
no different to that which would confront them
when assessing testimony that is internally
inconsistent – where it was submitted on behalf of
the appellant that when Ms M “accepted the
accuracy of the transcript [of her committal
hearing evidence], her evidence in chief was
contradicted” – where in this case, as soon as Ms
M “accepted the accuracy of the transcript”, any
conflict disappeared where there was no longer
any need to contradict her testimony and, for that
reason, no proper basis to advance ‘the writing’
into evidence – where put another way, her
committal evidence could not have been tendered
even had that been attempted – where the
account Ms M gave at the trial of the telephone
conversation with her daughter was preliminary
complaint evidence – where if accepted by the
jury, her evidence could not establish the truth of
any of the underlying facts – where at best it went
to establish the consistency in the making of the
complaint by her daughter and, if accepted by the
jury, it may have supported her daughter’s credit
– where in other words, although Ms M could give
evidence of what she was told, her evidence was
not capable of proving that what she was told was
true – where the appellant’s counsel sought to
have the witness: (1) distinctly admit that she had
given evidence at the committal hearing relative to
the subject matter of the proceeding; (2) agree
that the parts the witness was taken to were more
reliable than her trial testimony because her
“memory was better back in 2007”; and (3) accept
that those parts were true (or accurate), that is to
say, that they “represented the best recollection
[she] could give to the court” – where all three
objectives were achieved – where Ms M’s
adoption of what she had said in evidence at the
committal hearing became part of her oral
testimony at the trial – where the result was that
there was before the jury two competing accounts
from Ms M as to what her daughter had said on
12 January 2000 and, assuming Ms M was
otherwise accepted as a witness of truth, it was
for the jury to decide which account to accept –
where follows that it would be wrong to direct the
jury that Ms M’s evidence could only be used to
assess her credit because that evidence was also
available to assess the consistency of the
complainant’s complaint and, in that sense, to
assess her credit – where his Honour erred when
he instructed the jury that “what the mother said
to the committal court seven years ago is not
evidence of the fact that the complainant said
those things to her” – where although it was
correct to direct the jury, as his Honour
immediately did thereafter, that such evidence is
“not evidence of the truth of the contents of the
statement”, Ms M’s prior account had become
part of her oral testimony at trial and was therefore
available for use by the jury when considering
what the complainant said by way of preliminary
complaint to her mother – where thus the use to
which the evidence could be put extended beyond
merely using it to assess Ms M’s credit; if
accepted, it was also available to determine the
consistency or otherwise of the preliminary
complaint and, therefore, the complainant’s credit
– where there was a misdirection – where the
Crown conceded on the hearing of the appeal
that, if the appellant’s argument was accepted, it
could not be submitted that there had been no
substantial miscarriage of justice – where,
although the argument that Ms M’s prior account
was ‘proved by virtue of’ s19 for the purposes and
within the meaning of s101 cannot be accepted,
the point, that the prior account was available to
the jury to assess the credit of the complainant,
was still good – where the court is of the opinion
that, notwithstanding the misdirection, no
substantial miscarriage of justice has actually
occurred – where the guilt of the appellant on
each of the offences for which he was convicted
was proved beyond reasonable doubt.
Appeal dismissed.
R v Huston [2017] QCA 121, 9 June 2017
Appeal against Conviction – where the appellant
enlisted the help of a co-offender to rob the
victim, a seller of the drug ice – where there was
evidence that the appellant intended to assault
the victim and rob him but did not intend to use
a weapon – where there was evidence that the
appellant told the co-offender not to bring a knife
– where the co-offender nonetheless brought the
knife and stabbed the victim, who ultimately died
– where there was evidence that the appellant
was upset and angry at his co-offender after
the stabbing – where s8 of the Criminal Code
(Qld) extends criminal liability where two or more
persons have a common intention to prosecute
an unlawful purpose and the commission of
an offence is a ‘probable consequence’ of that
purpose – where the trial judge, in summing
up, referred to the test under s8 as requiring
the offence to be a ‘likely’ consequence of
the unlawful purpose, rather than a ‘probable
consequence’ – where the trial judge nevertheless,
on 24 occasions, referred to the correct test of
‘probable consequence’ – where the expression
‘a probable consequence’ in s8 of the code does
not mean ‘on the balance of probabilities’ – whilst
the interchange of the words ‘probable’ and ‘likely’
may, in certain circumstances, be unhelpful, there
is no reasonable prospect the jury would have
understood, by the use of such words in this
summing up, that the consequence under s8 of
the Criminal Code merely had to be ‘likely’ rather
than ‘probable’ – where the trial judge correctly
stated the requirements of s8 Criminal Code (Qld)
according to the Bench book direction and asked
the jury to consider what the common intention
to prosecute an unlawful purpose was, whether
the offence of murder was committed in the
prosecution of that purpose, and whether that
offence was of such a nature that its commission
was a probable consequence of the prosecution
of that purpose – where there was a live issue
between the prosecution and the defence about
what the common unlawful purpose was – where
the judge did not identify the evidence which
had to be considered specifically on the question
of what the common purpose was – where it
was possible that the common intention had
‘prescribed a restriction’ on the nature of the
offence which the secondary offender was
deemed to have committed because the jury
may have concluded that the common purpose
was to rob without the use of a weapon and that
murder was not a probable consequence of that
common purpose – where this was a case, like
R v Keenan (2009) 236 CLR 397 and others,
where the common purpose question required
the jury to determine the level of violence which
was commonly intended – where a miscarriage of
justice has occurred here because it is reasonably
possible that the failure to direct properly on this
question may have affected the verdict – where
there is a risk that the appellant was thereby found
guilty of an offence which was beyond the scope
of his criminal responsibility from the prosecution
of a common purpose.
Leave to amend the notice of appeal granted.
Appeal be allowed and the conviction be set
aside. The appellant be retried.
R v White & Sao Pedro Fishing Pty Ltd; Ex parte
Director of Public Prosecutions (Cth) [2017] QCA
140, 21 June 2017
Sentence Appeals by Director of Public
Prosecutions (Cth); Application for Leave to
Adduce Further Evidence – where the respondents
pleaded guilty to offences concerning carrying out
commercial fishing activities in a Commonwealth
reserve – where the respondents were fined, with
the sentencing judge concluding that an overall
fine of $10,000 was appropriate and sentenced
Sao Pedro Fishing to a fine of $5000 in respect
of the four counts against it, and Mr White to a
fine of $5000 in respect of the four counts against
him – where the Commonwealth Director of
Public Prosecutions appeals from both sentences
–
whether the sentencing judge erred in finding
that the respondent in CA No.204 of 2016 was
negligent, not reckless – where there was not the
slightest suggestion of Mr White’s having made a
deliberate choice to run the risk of being detected,
with a view to making a profit – where the evidence
did not support the lack of concern as to whether
the fishing was taking place in a marine park which
would be necessary to justify the characterisation
that Mr White was being reckless as to where
he set the Sao Pedro’s line – where on both
appeals, the Crown’s case is that the sentence
was manifestly inadequate – where in order to
succeed, the Crown must persuade this court
that it should infer the existence of error – where
the considerations which were explicitly taken
into account by the sentencing judge were all
considerations which were open on the evidence
before the sentencing judge (indeed no case of
specific error was argued other than that raised by
the first ground of appeal) and which were strong
pointers towards the correctness of the sentencing
judge’s conclusion that Mr White’s criminality
was not great – where the sentencing judge
did not explicitly advert to Mr White’s financial
circumstances and the question of the effect that